Writ of Error Coram Nobis

What is a writ of error coram nobis? Justice Drowota detailed the history in State v. Mixon, 983 S.W.2d 66 (Tenn. 1999). Originally used in English and early American common law for civil as well as criminal cases, today the writ is confined to the criminal arena. See Civil Rule 60.02, rendering Tenn. Code Ann. §27-7-101 obsolete.

The statute we now need to study is Tenn. Code Ann. §40-26-105. Subsection (b) provides:

The relief obtainable by this proceeding [in the nature of a writ of error coram nobis] shall be confined to errors dehors [outside] the record and to matters that were not and could not have been litigated on the trial of the case…. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment had it been presented at the trial.

There is a pesky statute of limitations codified at Tenn. Code Ann. §27-7-103:

The writ of error coram nobis may be had within one year after the judgment becomes final….

But due process may save the day. See Freshwater v. State, 160 S.W.3d 548 (Tenn. Crim. App. 2004). This bizarre case, by the way, is still in the pipeline. Usually, however, the short limitations period will preclude relief. That was the result in our coram nobis case in the 2010 Tennessee Law Institute seminars, Harris v. State, 301 S.W.3d 141 (Tenn. 2010).

In my daily reading of slip opinions I encounter more and more writ of error coram nobis issues. Probably it is because prisoners have only this last remedy after losing appellate, postconviction and habeas corpus challenges. The increase in such litigation caused the General Assembly to change where you take an appeal of a trial court’s refusal to grant coram nobis relief. Amended Tenn. Code Ann. §40-26-105(d) makes the Court of Criminal Appeals the proper tribunal, no longer the Supreme Court.

DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.